Anti-Polygamy
Legislation

About 1,300 LDS men who had
practiced plural marriage were jailed by federal officers
pursuant to the Edmunds Act (1882), and many women were found
"in contempt of court" and jailed for refusing to
testify against their husbands. In the Utah penitentiary in 1885
are (from left to right) Francis A. Brown, Freddy Self, Moroni
Brown, Amos Milton Musser, George H. Kellogg, Parley P. Pratt,
Jr., Rudger Clawson, and Job Pingree. Photographer: John P.
Soule.

by Ray Jay Davis

Bigamy is the crime of marrying while an undivorced spouse
from a valid prior marriage is living. Because many prominent
nineteenth-century Mormon men became polygamists under Church
mandate, both their vulnerability to prosecution for bigamy and
the legal attacks on the Church and its members for supporting
plural marriage created a crisis for Mormonism during the 1870s
and 1880s.

Bigamy was recognized as an offense by the early English
ecclesiastical courts, which considered it an affront to the
marriage Sacrament. Parliament enacted a statute in 1604 that
made bigamy a felony cognizable in the English common law courts.
After American independence, the states adopted antibigamy laws,
but they received little attention until the nineteenth century
in Utah.

The United States government has constitutional power to enact
laws governing territories, and under that authority Congress
enacted the Morrill Act (1862), making bigamy in a territory a
crime punishable by a fine and five years in prison. The statute
was upheld in Reynolds v. United States (1879), although the
defendant argued that the law violated the First Amendment
guarantee of the free exercise of religion.

Few Mormons were prosecuted for bigamy because the government
had difficulty obtaining testimony about plural wedding
ceremonies. Rather, they were charged with bigamous cohabitation,
a misdemeanor created by the Edmunds Act (1882). Proving
cohabitation was easy enough, and over 1,300 Latter-day Saints
were jailed as "cohabs" in the 1880s.

Antipolygamy legislation also put pressure on the Church by
threatening members' civil rights and Church property rights. The
Edmunds Act barred persons living in polygamy from jury service,
public office, and voting. The Edmunds-Tucker Act (1887)
disincorporated both the Church and the Perpetual Emigrating Fund
on the ground that they fostered polygamy. Furthermore, it
authorized seizure of Church real estate not directly used for
religious purposes, and acquired in excess of a $50,000
limitation imposed by the Morrill Act. In the Idaho Territory a
test oath adopted in 1885 was used to ban all Mormons (and former
Mormons) from voting because of the Church's position on
polygamy.

In 1890 after the U.S. Supreme Court upheld the seizure of
Church property under the Edmunds-Tucker Act in The Late
Corporation of the Mormon Church v. United States and the Idaho
test oath in Davis v. Beason, it became clear that plural
marriage was leading toward the economic and political
destruction of the Church. Shortly after these decisions, a
revelation was received by President Wilford Woodruff, who then
withdrew the requirement for worthy males to take plural wives
and announced the manifesto, formally stating his counsel to
Latter-day Saints to abide by antibigamy laws (see D&C
Official Declaration1). The Manifesto ended the legal
confrontation between the U.S. government and the Church.

Congress passed a final federal antibigamy provision in 1892,
which excluded polygamists from immigration into the United
States. This exclusion remains part of the U.S. Immigration and
Naturalization Code.

Utah, Oklahoma, New Mexico, and Arizona incorporated
antibigamy provisions into their turn-of-the-century state
constitutions as required by Congress for admission to the Union.
Idaho's Constitution not only outlaws bigamy but also bars
polygamists and persons "celestially married" from
public office and voting. However, that was interpreted in Budge
v. Toncray by the Idaho court not to include monogamous Mormons
married in an LDS temple.

During the twentieth century, federal and state governments
have prosecuted other polygamists under a variety of general
statutes. For example, federal officials have filed cases against
polygamists charging unlawful use of the mails to proselytize for
polygamy and alleging that moving plural wives across state
boundaries violates laws against interstate kidnapping and
interstate transportation of women for immoral purposes. Because
of their practice of plural marriage, polygamists have also had
legal troubles with state laws about adoption, inheritance, and
government employment. Changing social attitudes about
unconventional personal relationships may undermine the use of
legislation in this way. For example, in 1988 an Arizona court
held that it was illegal to deny a law enforcement security bond
to an admitted polygamist merely because of his marital status.

Laws against plural marriage and its practitioners were
enacted with reforming zeal. Congress and party platforms
considered Mormon polygamy and southern slavery the "twin
relics of barbarism." However, the lawmakers were not so
forthcoming about their own religious bigotry: their aim was to
destroy the Church's economic and political power, and bigamy was
their tool. The Church's temporal position was eroded, but it
survived the crisis.